Superior Court of Massachusetts,

Worcester County.
RANDSTAD PROFESSIONALS U.S. LP
v.
Gregory F. WILSON.

No. WOCV082760D.
Dec. 29, 2008.

1. MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR A

PRELIMINARY INJUNCTION
2. LEILA R. KERN, Justice.

*1 Plaintiff Randstad Professionals U.S. LP moves this court for a Preliminary Injunction against
defendant Gregory F. Wilson. In its motion, Randstad, among other things, alleges that Wilson is
its former employee who has violated the restrictive covenants contained in an Agreement he
signed with his former employer New Boston Select Group, Inc. This court, after a hearing on
December 23, 2008, and review of the Verified Complaint and the affidavits submitted by the
defendant, DENIES the motion.

3. BACKGROUND

The facts were gathered from the Verified Complaint and Wilson's supporting
affidavits. Randstad is a Delaware limited partnership engaged in the business of providing
employees to client companies for temporary and permanent assignments. In addition to branch
offices throughout the country, Randstad has a principal place of business in Wakefield,
Massachusetts. Wilson was first employed by New Boston Select Group, Inc. in December 1994,
as a Placement Coordinator. It was at that time he signed the Employment Agreement. In that
position, Wilson reported to Kathy Smith, a Regional Manager for New Boston and no one
reported to him. His responsibilities were to interview and recruit temporary and “temp-to-hire”
personnel to work at New Boston's existing accounts.

Wilson was promoted, in 1998, to a new position at the Worcester branch for light industrial. It
was at this time Wilson first assumed responsibilities that included sales. As assistant branch
manager, several people reported to Wilson and he continued to report to Kathy Smith. He also
now reported to Earl Callendar, the Regional Manager for New Boston. In 1999, Wilson was
promoted to Area Manager of Light Industrial and Hospitality. He no longer reported to Kathy
Smith but rather Callendar and Kevin Murphy, Vice President of Hospitality.

In 2000, Wilson was promoted to Regional Manager for Worcester and Leominster and assumed
responsibilities for more than one branch office. He began reporting to Mark Rivard in 2003.
Rivard was President of Placement Pros, a successor company to New Boston. Wilson's
responsibilities included Placement Pros offices in Worcester, Webster, Hartford and Nashville,
Tennessee, and he had approximately seven people reporting to him.

After it appeared that Randstad was going to be taking over Placement Pros, Wilson tendered his
notice of resignation to Rivard on or about December 1, 2008. He is currently employed by
Diamond Staffing, Inc., a direct competitor of Randstad, in Worcester, Massachusetts.

Paragraph 2 of the “Employment Agreement,” titled “ Non-Competition Agreement ” in pertinent

part states: “... for 18 months [after employment with the company] the Employee will not,
directly or indirectly, engage in ... activities in competition with the business or potential
business of the Company, namely providing temporary and permanent employee placement and
related services, within a radius of 100 miles of any office(s) and/or areas to which the Employee
was assigned and/or managed for the Company. For the same 18-month period, the Employee
will not solicit, provide services to or attempt to solicit or provide services to the Company's
current customers at the Employee's termination, customers for who [sic] the Company has
provided services within 18 months prior to the date of termination of employment, and
prospective customers at the time of the Employee's termination from whom the Company has or
plans to actively solicit business.”

*2 Thc Agreement goes on to say, in ¶ 7 Miscellaneous, “This Agreement shall inure to the
benefit of, and be binding upon the parties' successors, assigns and legal representative, provided
however(emphasis in the original), that the Employee's obligations under this Agreement may
not be assigned ” (emphasis added).

4. DISCUSSION

In determining whether to grant a preliminary injunction this court must perform the three-part
balancing test often cited and articulated inPackaging Industr. Group, Inc. v. Cheney, 380 Mass.
609, 617-17 (1980). First, this court must evaluate the moving party's claim of injury and its
likelihood of success on the merits. Id. at 617. Second, it must determine whether failing to issue
a preliminary injunction would subject the moving party to irreparable injury; i.e. losses that
cannot be repaired or adequately compensated upon final judgment. Id. at 617 n. 11. Third, “if
the judge is convinced that failure to issue the injunction would subject the moving party to a
substantial risk of irreparable harm, the judge must then balance this risk against any similar risk
of irreparable harm which granting the injunction would create for the opposing party.”Id. at
617. In balancing these factors, “[w]hat matters as to each party is not the raw amount of
irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of
the party's chance of success on the merits. Only where the balance between these risks cuts in
favor of the moving party may a preliminary injunction properly issue.”Id.

Massachusetts courts consider three factors in determining whether a covenant is sufficiently

reasonable to enforce. First, the legitimate business interest of the employer, second, the duration
and geographic scope of the restriction, and third, the impact of enforcement on the public.
See Wooley's Laundry v. Silva, 304 Mass. 383, 387 (1939); All Stainless, Inc. v. Colby, 364
Mass. 773, 778 (1974); Restatement Second of Contracts, § 188(1) (1979) (“A promise to refrain

2
from competition ... is unreasonably in restraint of trade if (a) the restraint is greater than is
needed to protect the promisee's legitimate interest, or (b) the promisee's need is outweighed by
the hardship to the promisor and the likely injury to the public”).

Turning first, as this court must, to plaintiff's likelihood of success on the merits, the plain
language of the Agreement indicates the plaintiff cannot succeed in its attempt to enforce the
non-compete provision of the Agreement. As is stated in ¶ 7, “the Employee's obligations under
this Agreement may not be assigned.” The word obligation is defined as an act of obligating
oneself to a course of action; something (as a promise or a contract) that binds one to a course of
action. The Merriam Webster Dictionary 1995 Edition. By its own terms, the Agreement is not
enforceable by any successor, assign or legal representative of New Boston Select Group, Inc.

5. CONCLUSION

*3 For the foregoing reasons, plaintiff Randstad Professionals U.S. LP's Motion for Preliminary
Injunction is DENIED.

Mass.Super.,2008.
Randstad Professionals U.S. LP v. Wilson
Not Reported in N.E.2d, 2008 WL 5505471 (Mass.Super.)